NDAs: A Manifesto for App Developers (and other Creative Professionals)

If you're reading this post, a Savvy Apps team member, developer, or someone doing creative work has pointed you to it. As people who make a living creating apps, software, or comparable work, consider that you're reading our manifesto of sorts. It articulates our experience and position with regards to non-disclosure agreements.

Here's a disclaimer. I'm not a lawyer and this article should not be construed as legal advice. The perspectives shared here are based on 15+ years of experience, extensive peer conversations, and what we as an industry consider reasonable expectations with regards to NDAs. Seek counsel if you're still confused.

We Get It, You're a Little Afraid

To be clear, as creative professionals we are not not opposed to signing NDAs. We understand what they're about. In fact, unless you're a lawyer, we likely understand the purpose of an NDA more than you. That's not being brash, prideful, or arrogant. Some of us have reviewed hundreds, if not thousands, of NDAs over the course of our careers.

We realize you may have an idea, intellectual property, trade secrets, or other confidential information and that you want that protected. You're looking to have some assurance that someone or some company with skills you're looking to hire or employ can't simply take your confidential information, build something with it, and then go buy a private island with the profits. We're with you... now we ask that you understand our position and approach to NDAs as well.

What's an NDA Really?

Let's start with the basics. An "NDA" stands for non-disclosure agreement. It essentially is an agreement by two parties to ensure that confidential information is protected, that is, not disclosed to parties not named in the agreement.

Many people like yourself who ask for an NDA think that by having an NDA, they are preventing others from stealing their idea. An NDA doesn't do that necessarily. Instead, it provides protection against the named party for using or disclosing confidential information. That means if another person or company approaches a developer or firm to build the exact same app, they absolutely could, provided they did not use that confidential information to do so.

Note that NDAs focus on protecting "confidential information.” That phrase will be defined in the agreement but usually hones in on tangible objects like competitive research, business plans, intellectual property, financial projections, product roadmaps, etc. That means an idea in and of itself is likely not protectable. If you have little more than an idea, without these other items an NDA won't necessarily provide you any protection.

Why Creative Professionals Won't Sign Your NDA Immediately

There are three main reasons why the top creative professionals won't sign your NDA without any context: time, money, and liability. On the first point, the best creative professionals are in demand. Keeping up with prospective work inquiries at Savvy Apps is a full-time job. Trying to review every single NDA that comes our way would be extremely time intensive.

For more complex NDAs or for those creatives that simply have less experience assessing even a basic NDA, they might need to employ outside legal help. Relying on a lawyer to review an NDA has a hard cost to it and will usually require a longer lead time. Sending an NDA to a lawyer to review could result in 2-3 weeks before even a basic discussion can happen. Additionally, even for a single NDA, it might be thousands of dollars when we don't even know if the work is a good fit for us.

A more subtle point you might not have ever considered relates to liability. Each NDA put in place is a legally binding agreement. It requires us as creatives to ensure we're abiding by the terms. If we don't, consequences are typically stipulated. By executing every single NDA request without any context or background information, we can overexpose our liability risks.

We'd suggest to be very careful of developers or companies that will sign an NDA without any information because they may not take the agreement seriously. That's especially true of companies who have automated the NDA process, where you enter your information and get an NDA automatically sent back to you via email. They likely are completely unaware of who they've signed NDAs with and what confidential information they should be protecting.

What You Should Provide Before an NDA Request

If you have real confidential information to disclose, there's still plenty you can share prior to requesting an NDA. At a minimum, you should consider addressing the following points. Doing so may result in a creative professional indicating they're not a good fit based on one of these items. That will save you and them time:

For the first bullet, you don't have to get detailed at all. You can even simply point us to other apps on the app stores, even if they're not competitive. By seeing similar features to what you want built, we can get a much better idea if we can assist you.

As creatives we ask that you provide us this information at the bare minimum. We like to usually have a handful of email exchanges and at least one phone call or video conference before we're asked to get an NDA in place. That should also help you understand us better and assess if you even want to disclose any confidential information to us.

What a Reasonable NDA Looks Like

A reasonable NDA for app developers, designers, agencies, and other creative professionals starts with the NDA being "mutual.” Before getting to what a mutual NDA looks like, a one-sided NDA essentially means that one party is named as the discloser of information and the other party the recipient. The discloser in this case is usually the company or person requesting the NDA. The recipient would be the creative professional. With this type of setup, creative professionals have little to no protection or rights. The recipient effectively is the only party on the hook for abiding by the terms or who might be responsible for damages if confidential information is disclosed.

That in and of itself is not reasonable. Then consider those creatives who have been in business for some time. They likely have their own confidential information, which might range from proprietary processes, frameworks, or customer names. For an individual with just an idea to start—and it's no disrespect to that scenario—the creative professional comparatively has much more confidential information they need protected. That's why in a mutual NDA, each party becomes named as a discloser and recipient of confidential information. Both are protected accordingly and essentially are bound to the exact same provisions.

The other major reasonable request in an NDA is the term limit. Indefinite term lengths are non-starters. Technology moves extremely quickly, so even limits of five years are overly restrictive today. We're seeing more and more one year requests, but two year limits can make sense as well. The only time you should really ask someone to sign something more than that is if you have millions of dollars worth of intellectual property. Creatives can typically tell if you have that, too.

Concluding Note

You'll find that the best of the best creative professionals will ask the right questions before signing an NDA. We'll also be extremely willing to sign one if you provide us context and have a reasonably structured NDA. Many creatives will also have the type of NDA described above available for you once these discovery changes have happened.

While we sign NDAs, realize that those who care about their craft have something more important to protect: reputation. It is the most important part of who we are. We don't want to steal your ideas. Help us, help you and an executed mutual NDA will quickly make its way into your possession.

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October 28, 2015By: Ken Yarmosh

Ken Yarmosh is the Founder & CEO of Savvy Apps. He's the creator of more than 20 featured apps, including an Editor's Choice selection and Starbucks Pick of the Week. An O'Reilly author, Ken regularly speaks about application design & development, as well as the future of technology at outlets ranging from Bloomberg TV to Google.

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